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Indicting Chinese Military Officers Is A Huge Mistake
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RyanSepe
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RyanSepe,
User Rank: Ninja
5/30/2014 | 11:40:48 AM
Re: Following orders is often criminalized
This was a very well thought out and articulated response. I agree with most of the points you propose however I think some need to be analyzed.

Equating tortue and genocide to cyber espionage is not equatable on any scale. Following orders is tricky but I believe there is a fine line between the above concepts where a person of good conscience would say that I am willing to perform cyber espionage if that is my job backed by my country over killing and torturing human beings.

There is a moral boundary that is crossed with cyber espionage, however the boundaries may be initialized differently within different environments. Prime example between Chinese and US laws. Meaning that a person could have developed a code of ethics that allows them to perform things differently in China that growing up in the US may not have allowed and vice-versa. If there isn't an overall universal standard, it is hard to enforce such laws on a grand scale.
anon3493590510
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anon3493590510,
User Rank: Apprentice
5/29/2014 | 10:48:54 PM
Following orders is often criminalized
On first reading the position offered in this post seems reasonable and well-founded. But it comes up short in important ways.

The idea that soldiers, following orders that are for them lawful, are immune to criminal sanction by other nations is just wrong. On the contrary, the principle of "comity" which fathers State Immunity laws in most nations makes legal recourse against foreign governments completely unattainable in the circumstances in question. This leaves only recourse against the individuals who actually commit the criminal acts.

Moreover there is an extensive and growing body of international law, certainly post-Nuremberg, that clearly makes individuals accountable for their actions, even under orders that are for them lawful. It is a matter of degree and legal evolution to consider hwo far those laws should reach. The reach may have started at genocide but it has moved beyond that to isolated incidents of torture.

I recognize that there is a vast degree of normative difference between torture and large scale commercial theft. But it is correct to recognize that it is in fact a matter of degree, not principle. The principle has long been breached.

One of the most important reasons for criminalizing the behaviour of individuals under orders of a nation state is to create deterence to the greatest effect possible.

If it is countered that in some or even many cricumstances the criminal actors have no choice, there are well-established defences of coersion and necessity. So the existence of an objective threat is not sufficient cause to abandon the law.

The irony, or perhaps hypocrisy is more accurate, in this case is that the nation state that has been the most obstructive of criminalizing individual behaviour under orders, specifically criminalizing torture, has been the United States.

The U.S. refuses to ratify and will not recognize the authority of the Internaional Crimnal Court to even hear cases of torture, much less cases of theft of intellectual property or commercial espionage.

The U.S. position is precisely that individuals under lawful orders of another nation are subject to prosecution by the United States at the will of the United States, but no one else is competent to prosecute anyone other than their own citizens. That "exceptionalism" does pose a real long term threat to U.S. interests because depriving an indepdent international tribunal of jurisdiction means that offended or hostile foreign governments have the moral foundation laid by the U.S. upon which to build their own national prosecutions of U.S. citizens.

So, while I agree with that particular conclusion I do not accept the proposition that the international community must or should be incapacitated in prosecuting international scale crimes, including commercial espionage. Whether those crimes are prosecuted at an international court or through enabling legislation by national courts, there is no longer a good case that they should go unprosecuted. This already happens with international commercial law, which is enforced by national courts of the nations that are party to, for example trade agreements.

The Snowden distraction actually makes the case for new international norms such as an agreement not to spy on one another's leaders.

Two factual points: what are the sources for the assertion that various Western governments engage in commercial espionage for the private gain of non-government entities? And, while it may or may not be true that the direct frutis of U.S. espionage are not provided for private gain, it is not true that the U.S. does not conduct espionage for commercial purposes. It engages in active spying as part of its trade negotiations and disputes and renders heroic efforts on behalf of relatively small groups of companies such as the pharmaceutical and pesticide companies. No one of them may be given specific intellectual property, but the entire international system is moved to their private advantage, in part with the use of espionage against friendly governments.


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